Frequently Asked Questions
2021 Florida Statutes
Title VI – Civil Practice and Procedure
Chapter 45 – Civil Procedure: General Provisions
45.032 – Disbursement of Surplus Funds After Judicial Sale.
There is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim.
It is the intent of the Legislature to abrogate the common law rule that surplus proceeds in a foreclosure case are the property of the owner of the property on the date of the foreclosure sale.
Owner of record” means the person or persons who appear to be owners of the property that is the subject of the foreclosure proceeding on the date of the filing of the lis pendens. In determining an owner of record, a person need not perform a title search and examination but may rely on the plaintiff’s allegation of ownership in the complaint when determining the owner of record.
Subordinate lienholder” means the holder of a subordinate lien shown on the face of the pleadings as an encumbrance on the property. The lien held by the party filing the foreclosure lawsuit is not a subordinate lien. A subordinate lienholder includes, but is not limited to, a subordinate mortgage, judgment, tax warrant, assessment lien, or construction lien. However, the holder of a subordinate lien shall not be deemed a subordinate lienholder if the holder was paid in full from the proceeds of the sale.
Whoever owned the property on the date the lawsuit was filed is the party who can claim surplus funds. They can make that claim after any lienholders are paid what they are owed on the property. Other lienholders might be: second or third mortgages, city liens (unpaid water, electricity, trash, etc.), code enforcement violations (didn’t fix something the city asked you to), UCCs (people who have a secured asset they have loaned to you like solar power on the roof, or hot water heaters, etc.) During our case review, our expert specialist will walk you through all the details of your case and who may or may not claim surplus.
A lot of times, we see the investor or purchaser at auction try and make a claim for surplus funds. This happens a lot when the homeowner isn’t represented by us. If nobody files an objection to this claim, a lot of judges will grant it. As a result, money that actually belongs to you (the prior homeowner) instead gets wrongfully disbursed to the new buyer of the home at auction. We can and will fight this on your behalf!
Sometimes it’s as simple as a spouse’s property, or your parents. However, in the state of Florida if someone dies without a will they died “intestate”, and so there is a predefined set of rules on who are the heirs. Your account specialist will walk you through how exactly you are entitled to the funds, but rest assured we are experts in this and have identified you as the right party!
The short answer is, No!
If the mortgage was not named in the foreclosure case, they cannot claim surplus. Even if they are the plaintiff, they can’t claim surplus because they were paid in full from the proceeds of the sale. If they are not named, the reason why they cannot claim surplus is that they still have their “senior” lien on the property; they weren’t “foreclosed”. The person who bought it at auction bought the property with that mortgage still on the property, and so that new property owner is now responsible for that mortgage. In other words, you are in the clear to have us claim the funds on your behalf.
Typically, a motion needs to be filed with the court so that these funds can be collected. In order to do this, you can hire an attorney on your own which is very costly – attorneys typically charge an hourly rate which you will have to pay out-of-pocket, even if they aren’t successful. Alternatively, if you find an attorney that works on contingency, then they will charge a fee as high as 30% or more!
When the claims are more complex in nature, our attorneys need to work diligently to establish you as the rightful recipient of these funds, and to ensure that the court orders a release of these funds by the agency holding them.
By working with The Recovery Agents, all of the attorney’s fees and related expenses are completely covered by us. There are zero out-of-pocket expenses that you will incur. And we work strictly on a contingency basis, so we only get paid when/if you get paid! And if we are not able to recover any funds on your behalf, then our services are 100% free of charge!
After one year, the funds from your foreclosure sale are sent to the Florida treasury. They can still be claimed from there but that process is much more complex and takes significantly longer, so we really need to collect them before one year.
The biggest problem isn’t the funds being lost to the county or state, but there are people who watch these cases and if someone doesn’t file for the funds within the first few months they will fraudulently try and collect the funds for themselves. They might even try and sign your name on certain papers in an attempt to claim the funds.
We have worked with homeowners in the past who were victims of fraud and we were able to defeat those fraudulent claims and get the funds disbursed to the homeowners correctly.
If you don’t want the funds, consider using The Recovery Agents to partner with one of our charities, many of which go to help homeowners facing foreclosure, or we can partner with a charity of your choosing and direct the funds to them.
Discuss this with your recovery specialist. if needed, we will retain an attorney on your behalf to ensure your income-based support is not disrupted due to claiming your funds.
My home is selling at an HOA foreclosure, but I have a mortgage on the property. Am I still entitled to surplus funds?
The answer is “maybe”! Each case is different based on many factors, including which parties are actually named in the foreclosure suit. The Recovery Agents legal team will provide you with a detailed overview of your specific case at no cost to you. In many cases, these other liens and mortgages are not named in the foreclosure suit and therefore aren’t entitled to receive any of the surplus funds that you may be entitled to.